Senate Study Bill 1220 - Introduced SENATE FILE _____ BY (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON ZAUN) A BILL FOR An Act concerning the liability of private employers, general 1 contractors, and premises owners for negligently hiring 2 or failing to supervise employees, agents, or independent 3 contractors convicted of a public offense. 4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 5 TLSB 2759XC (4) 88 asf/jh

S.F. _____ Section 1. NEW SECTION . 671A.1 Limitation on liability for 1 negligently hiring or failing to supervise an employee, agent, or 2 independent contractor convicted of a public offense. 3 1. A cause of action shall not be brought against a private 4 employer, general contractor, or premises owner solely for 5 negligently hiring or failing to adequately supervise an 6 employee, agent, or independent contractor, based on evidence 7 that the employee, agent, or independent contractor has been 8 convicted of a public offense as defined in section 701.2. 9 2. This chapter does not create a cause of action, expand 10 an existing cause of action, or apply to the cause of action of 11 negligent retention. 12 3. This chapter does not apply to employment of prisoners 13 at prisons. 14 4. This chapter does not alter any statutory provision 15 allowing an employer to conduct a criminal history background 16 investigation or consider criminal history records in the 17 employment process for particular types of employment. 18 Sec. 2. NEW SECTION . 671A.2 Liability protection not 19 applicable. 20 1. This chapter does not preclude a cause of action for 21 negligent hiring by or the failure of a private employer, 22 general contractor, or premises owner to provide adequate 23 supervision of an employee, agent, or independent contractor, 24 based on evidence that the employee, agent, or independent 25 contractor has been convicted of a public offense as defined in 26 section 701.2, if all of the following criteria are met: 27 a. The private employer, general contractor, or premises 28 owner knew or should have known of the conviction. 29 b. The employee, agent, or independent contractor was 30 convicted of any of the following: 31 (1) A public offense that was committed while performing 32 acts substantially similar to those reasonably expected to 33 be performed in the employment or under the relationship or 34 contract, or under conditions substantially similar to those 35 -1- LSB 2759XC (4) 88 asf/jh 1/ 5

S.F. _____ reasonably expected to be encountered in the employment or 1 under the relationship or contract, taking into consideration 2 all of the following factors: 3 (a) The nature and seriousness of the public offense. 4 (b) The relationship of the public offense to the ability, 5 capacity, or fitness required to perform the duties and 6 discharge the responsibilities of the employment or the 7 relationship or contract. 8 (c) The extent and nature of the employee, agent, or 9 independent contractor’s past criminal activity. 10 (d) The age of the employee, agent, or independent 11 contractor when the public offense was committed. 12 (e) The amount of time that has elapsed since the employee, 13 agent, or independent contractor’s last criminal activity. 14 (f) The conduct and work activity of an employee, agent, or 15 independent contractor before and after the criminal activity. 16 (g) Evidence of the employee, agent, or independent 17 contractor’s rehabilitation or rehabilitative effort while 18 incarcerated or after release. 19 (h) Other evidence of the employee, agent, or independent 20 contractor’s fitness, including letters of recommendation from 21 any of the following: 22 (i) Prosecutors, law enforcement, or correctional officers 23 who prosecuted, arrested, or had custodial responsibility for 24 the employee, agent, or independent contractor. 25 (ii) The sheriff or chief of police in the community where 26 the employee, agent, or independent contractor resides. 27 (iii) Any other person in contact with the convicted 28 employee, agent, or independent contractor. 29 (2) A sexually violent offense as defined in section 229A.2. 30 (3) The offense of murder in the first degree under section 31 707.2. 32 (4) The offense of murder in the second degree under section 33 707.3. 34 (5) The offense of kidnapping in the first degree under 35 -2- LSB 2759XC (4) 88 asf/jh 2/ 5

S.F. _____ section 710.2. 1 (6) The offense of robbery in the first degree under section 2 711.2. 3 (7) An offense committed on certain real property for which 4 an enhanced penalty was received under section 124.401A or 5 124.401B. 6 (8) A felony offense where the employee, agent, or 7 independent contractor used or exhibited a dangerous weapon as 8 defined in section 702.7 during the commission of or during 9 immediate flight from the scene of the felony offense, or 10 where the employee, agent, or independent contractor used or 11 exhibited the dangerous weapon or was a party to the felony 12 offense and knew that a dangerous weapon would be used or 13 exhibited. 14 2. The protections provided to a private employer, general 15 contractor, or premises owner under this chapter do not apply 16 in a suit concerning the misuse of funds or property of a 17 person other than the employer, general contractor, or premises 18 owner, by an employee, agent, or independent contractor if, on 19 the date the employee, agent, or independent contractor was 20 hired, the employee, agent, or independent contractor had been 21 convicted of a public offense that included fraud or the misuse 22 of funds or property as an element of the public offense, and 23 it was foreseeable that the position for which the employee, 24 agent, or independent contractor was hired would involve 25 discharging a fiduciary responsibility in the management of 26 funds or property. 27 EXPLANATION 28 The inclusion of this explanation does not constitute agreement with 29 the explanation’s substance by the members of the general assembly. 30 This bill relates to the following causes of actions: 31 negligent hiring and failure to adequately supervise. The bill 32 does not expand or create any causes of action or apply to the 33 cause of action of negligent retention. 34 Under current law, the torts of negligent hiring and 35 -3- LSB 2759XC (4) 88 asf/jh 3/ 5

S.F. _____ supervision allow a person injured by an employee to sue the 1 employee’s employer even though the act was committed outside 2 the scope of the employment due to some fault resting with the 3 employer for hiring the employee, or failing to supervise the 4 employee. 5 The bill provides that the causes of action of negligent 6 hiring and negligent supervision shall not be brought against a 7 private employer, general contractor, or premises owner solely 8 based on evidence that the employee, agent, or independent 9 contractor has been convicted of a public offense. However, 10 the bill does not preclude causes of action for negligent 11 hiring or negligent supervision of an employee, agent, or 12 independent contractor, if two criteria are met. First, the 13 private employer, general contractor, or premises owner knew or 14 should have known of the conviction; and second, the employee, 15 agent, or independent contractor was convicted of a public 16 offense enumerated in the bill or a public offense that was 17 committed while performing duties substantially similar to 18 those reasonably expected to be performed in the employment, 19 or under the relationship or contract, or under conditions 20 substantially similar to those reasonably expected to be 21 encountered in the employment or the relationship or contract, 22 taking into consideration enumerated factors set forth in the 23 bill. 24 The bill provides that the protections provided to a private 25 employer, general contractor, or premises owner do not apply 26 in a suit concerning the misuse of funds or property of a 27 person other than the employer, general contractor, or premises 28 owner, by an employee, agent, or independent contractor if, on 29 the date the employee, agent, or independent contractor was 30 hired, the employee, agent, or independent contractor had been 31 convicted of a public offense that included fraud or the misuse 32 of funds or property as an element of the public offense, and 33 it was foreseeable that the position for which the employee, 34 agent, or independent contractor was hired would involve 35 -4- LSB 2759XC (4) 88 asf/jh 4/ 5